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Do Some Courts Underenforce the Second Amendment?

Data show problems in several Circuits

This Fall, the Duke Law Journal held a symposium Heller at Ten: A Symposium on From Theory to Doctrine. All of the articles are, at least partially, responses to an article Eric Ruben and Joseph Blocher that analyzed data for all post-Heller cases, from 2008 until early 2016. From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018). Examining data from 1,153 cases, Ruben and Blocher presented a wealth of interesting findings. For example: pro se plaintiffs rarely succeed; Second Amendment claims have a better chance of success claims in civil cases than in criminal ones; and lower courts rarely use historical sources (only 29 from before 1791, and only 42 from 1791-1868).

All of the response articles, including mine, praised the Ruben & Blocher article, and deservedly so. It is a major contribution to the scholarly literature.

My article, Data Indicate Second Amendment Underenforcement, did take issue with Ruben & Blocher's claim that their data prove that the Second Amendment is not underenforced in the lower courts. First of all, Ruben & Blocher have a broad definition of "success," which includes winning on a preliminary motion. So if a plaintiff defeats a motion to dismiss, and later loses on the merits, Ruben & Blocher score the MTD decision as a Second Amendment success. With this broad definition, they find that Second Amendment claimaints succeed 12% of the time, and therefore there is no underenforcement problem. Ruben & Blocher code ten cases collectively from the Second, Fourth, and Ninth Circuits as Second Amendment successes. Yet only a single one of those cases involved a final decision on the merits.

According to Ruben and Blocher, the highest rate of Second Amendment successes have come in right to carry cases. Indeed, the Seventh Circuit, the Illinois Supreme Court, and the D.C. Circuit have all struck laws that prohibited the vast majority of law-abiding adults from carrying handguns for lawful protection. Illinois and D.C. now have fair systems for adults to obtain carry permits after passing safety training and background checks. Yet decisions in other jurisdictions have nullified the right to bear arms in three states or allowed nullification by local governments in part of five more states. When the exercise of a constitutional right is prohibited for tens of millions of Americans, that does indicate an underenforcement problem in at least some jurisdictions.

Ruben & Blocher's datacentric article was not meant to analyze doctrine. But when one does look at doctrine, underenforcement (indeed, nullifcation) becomes apparent in some courts. Contrary to Heller, the Second Circuit uses rational basis in some Second Amendment cases. When the Second Circuit does apply heightened scrutiny, the court examines the sufficiency of the government's evidence, but does not examine whether the other party has rebutted that government evidence.

When applying intermediate scrutiny, some courts do apply the standard rules, such as considering whether there are substantially less burdensome alternatives to the regulation at issue. But some, including the Second Circuit, skip this part of intermediate scrutiny when the Second Amendment is involved.

Other articles in the symposium were by Michael Dorf (pondering former Justice Stevens' proposal to repeal the Second Amendment); Sanford Levinson (criticizing the Supreme Court's "Sphinx-like inscrutability" on important post-Heller issues, including the federal ban on arms possession by illegal aliens); Darrell A.H. Miller (noting the reluctance of lower courts to use originalist methodology); George Mocsary (critiquing the claim that there is no underenforcement problem; noting much lower win rates under heightened scrutiny Second Amendment contexts than for other rights); Adam M. Samaha & Roy Germano (presenting their own study showing that judges vote in favor of gun rights claims at a far lower rate than they vote for other rights: commercial speech, Establishment Clause, anti-affirmitive action, and abortion rights); and Ronald F. Wright & Mark A. Hall (praising Ruben & Blocher's datacentric methodology).

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  • mad_kalak||

    Wonderful resources, thanks for the links.

  • JesseAz||

    Yes.

  • loveconstitution1789||

    2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    Every single court.

    Every judge that allows infringement of any American's right to keep and bear Arms should be impeached immediately.

  • Sarcastr0||

    By your radical and simplistic logic, the 'Make no Law' bit in the First Amendment is also being ignored all the time as well. And lets not get started on the Fourth!

    Since our Founding, our rights have never operated as some bare prohibition, despite what the gun rhetoric tries to say.

    Prof. Kopel invoking 'nullification' for courts not interpreting Heller as he does is pretty bad, but your paradigm turns this from any kind of useful policy debate into you tilting at windmills and basking in your angry righteousness.

  • Brett Bellmore||

    Sarcastro, it goes a bit beyond not interpreting Heller the way Kopel does. Some of them are 'interpreting' Heller in ways that contradict the plain words of the decision.

    I know you think I invoke bad faith too often, but it IS a real thing in this world.

  • Sarcastr0||

    To be sure there is bad faith, and I would not be surprised to see it here. But Kopel's examples don't make that case to me. 'Reasonable regulations' would seem to potentially encompass rational basis.

    Besides, nullification doesn't mean just bad faith. In the past it operated as open defiance.

  • Brett Bellmore||

    But the Court ruled out 'interest balancing' in both Heller and McDonald, yet some of the lower courts are explicitly doing it anyway.

    And you see some fairly open defiance in the lower courts, too.

  • Sarcastr0||

    I'll take your word on that. But that could very well be a good faith mistake (lord knows I've seen enough lower courts misunderstand the state of the law in the past).

    If I'm not seeing it, it's not open. Look at past nullification crises - open defiance means quotes that make headlines.

  • Sarcastr0||

    re: good faith mistake.

    I'm a court. I see reasonable regulations, and apply myself to what is reasonable. I look at the reasoning behind the regulation, including the costs and benefits as the legislature saw them.

    I can pretty easily see how that path leads reasonably to interest balancing. So how else does one analyze reasonableness?

    Leading us to Kopels' previous post requesting the Court clarify Heller. I also think Heller deserves clarity. And I note that lack of clarity rather undercuts the nullification by bad faith under-enforcement argument.

  • DjDiverDan||

    When a lower court cites Heller, and relies upon Justice Stevens' dissent to provide the rule of law, while rejecting Scalia's MAJORITY opinion, that is bad faith. Nobody qualified for the Federal bench can fail to understand the distinction between a majority opinion of the Supreme Court (controlling law) and a dissent (NOT controlling law). Rejecting the majority opinion in favor ofthe dissenting view is not a "good faith error," it is open defiance.

  • Sarcastr0||

    Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court's first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

  • Brett Bellmore||

    We're not chiding them for failing to make everything clear in the Heller and McDonald cases.

    We're chiding them for spending about 10 years refusing to do anything to make things clearer, even when confronted with circuit splits and whole circuits in outright defiance of their rulings.

    We're chiding them for refusing to do their job.

  • Bob from Ohio||

    "'Reasonable regulations' would seem to potentially encompass rational basis."

    Separate but equal amendments are inherently unequal.

    No logical reason to apply different review standards to 1A and 2A.

  • Sarcastr0||

    I would disagree, based on the piecemeal way the jurisprudence for each amendment develops, each has a different standard - even 1A doesn't use strict scrutiny off the break - there's forum analysis, all sorts of exceptions, a whole boatload of purpisivism...

    But I don't need to argue, I just need to note that your argument is only your argument - a lower court that disagrees with Bob isn't nullifying the law.

  • Brett Bellmore||

    There was never any rational, principled basis for that piecemeal development, though, or for the 2nd amendment being incorporated so late. Just the Court treating the Bill of Rights like an ala carte menu; "I'll have a double helping of 1st amendment, skip the 2nd and 3rd, a bit of 4th and fifth on the side."

  • MatthewSlyfield||

    To be fair though, the 3rd is really narrow, and I can't think of any actual cases of the US military trying to house soldiers in people's homes outside of the occupation of plantation houses during the Civil War, and due to the succession, those don't really count.

  • MatthewSlyfield||

    Oh, and since the states don't have their own armies anymore, I don't see how incorporation of 3A against the states would work.

  • David Welker||

    MatthewSlyfield:

    Some states do have their own armies though. For example, California.

    en.wikipedia.org/wiki/ California_Military_Department

    That a right is not violated regularly by the government might be taken as a sign that the right in question is working, rather than as a sign of obsolescence. And it also might be a sign of clarity of the right. Probably, the 3rd Amendment is more black and white than some other parts of the Bill of Rights.

  • MatthewSlyfield||

    "rather than as a sign of obsolescence."

    I never said anything about 3A being obsolete.

  • darkknight9||

    Mr Welker, if your state army (Calguard) is paid for in its majority through federal funding, and can be deployed, recalled, and broken up to be added to every other state's army as needed by federal armed forces officials is it really a state army?

    Especially if branches of the state of California's army have the word "national" in their titles? :)

  • Brett Bellmore||

    It's true that a government as flush as ours isn't going to station soldiers in private homes to save money. But there have been cases where police took over private homes for surveillance purposes, that appear to violate the 3rd amendment.

  • MatthewSlyfield||

    3A Text:


    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

    "But there have been cases where police took over private homes for surveillance purposes, that appear to violate the 3rd amendment."

    No, they don't. Cops are not soldiers. Taking over a house for a few hours is not quartering.

  • Brett Bellmore||

    You'd have a better case for "cops are not soldiers" if cops had existed at the time the 3rd amendment was written. They sure look a lot like soldiers, being government employees who go about armed.

  • TangoDelta||

    Taking over a house for a few hours is not quartering.


    That may be interpreted as true but the 5th amendment includes "nor shall private property be taken for public use, without just compensation" therefore even though the taking for public use was only for a few hours it should require compensation and no, "hey, at least we didn't kill your dog" isn't compensation.

  • TwelveInchPianist||

    The aleutains , during WWII.

  • ||

    No, reasonable regulations would not encompass rational basis. In Highland park, the 7th Circuit ruled that making the public FEEL safer, even with no safety improvement, is a substantial benefit. If you think that's what Scalia had in mind when he said "reasonable regulations," I don't now what to tell you.

  • Rich7553||

    Perhaps you could point where in Heller the term "reasonable regulation(s)" appears? Although widely touted by media, I cannot find it.

  • Sarcastr0||

    IIRC it's from the lower court decision, a standard that the Court uses in it's analysis in finding the complete prohibition an unreasonable regulation.

  • Brett Bellmore||

    Right, but in stating that they didn't have to address level of scrutiny because a complete prohibition would fail at any level of scrutiny, they weren't endorsing rational basis, a level of review only used when no constitutional right is involved. Because they were quite explicit that a constitutional right WAS involved.

    And that rules out use of rational basis.

  • David Welker||

    Sarcastr0:

    I am afraid I do not agree with you that the Bill of Rights is just a "policy debate." The point of a Bill of Rights is to protect individual rights despite the outcome of policy debates.

    Debating exactly how much less protection from the courts that 2nd Amendment rights deserve compared to the rest of the Bill of Rights seems to be a favorite hobby of many liberals. Indeed, most had to be dragged kicking and screaming that gun rights were even individual rights at all. Now many want to take Scalia's language in Heller as much as possible and try to limit the right to only the home as much as possible.

    "Since our Founding"

    Since our Founding, we also have had a Supreme Court that has produced such atrocities as Dred Scott or Korematsu. That the judiciary can be persuaded to participate in the blatant disregard of fundamental rights is not exactly an endorsement. I may not expect a better argument than this from an originalist, but I do expect a better argument than this from you. I hold you to a higher standard.

    Many liberals seem to have as much passion for disregarding gun rights as many conservatives have for disregarding abortion rights. So, I am not sure we are really have a "policy debate" after all, but instead just arguing over whose ox is going to be gored and which rights are going to be "overcome" by a willful judiciary. Liberals don't like guns just like conservatives don't like abortion.

  • Sarcastr0||

    That's never how the BoR has operated though. Even strict scrutiny is a balancing test, just with a heavy thumb on the scale. It's not a 'all that matters is what makes for good policy' debate, but it is a debate about policy.

    Indeed, comparing a right as 'more' or 'less' protected doesn't work either, since the contours of a right are not some well-defined volume.

    Is 'reasonable regulation' more or less than 'undue burden' isn't really a question with an answer, either.

    I'm all for gun rights, and to me reasonable regulation does not encompass a ban. These threads tend to be about broad, undefined bromides used in service of ginning up victimization from policies that have largely been status quo since the '90s.

  • Absaroka||

    "... ginning up victimization from policies that have largely been status quo since the '90s."

    I tend to be a little bit Burkean, but I'm not sure 'that's how we've always done it' is an effective argument when discussing rights violations.

    Miranda warnings, court appointed lawyers, Jim Crow, raiding gay bars, ... lots of things have been done for a long time. If it's wrong, the fact that it's been wrong for a long time seems like an aggravating factor, not a mitigating one.

    And 'since the 90's' ... dad gum young'uns :-)

  • Sarcastr0||

    Nah, I feel you. You can certainly say the actual right isn't what we've thought it is.

    Indeed, I would tend to agree - I think our status quo is too restrictive on the right to self defense, and should change ASAP. (Though I'm cool with a registration regime)

    But the continual drum beat of a bad-faith conspiracy of illegitimate judges and scheming liberal legislators is less an argument, and more partisan self-actualization.

  • Absaroka||

    "But the continual drum beat of a bad-faith conspiracy of illegitimate judges and scheming liberal legislators is less an argument, and more partisan self-actualization."

    It's a big elephant, so the blind men can find a lot of nooks and crannies. That said, IIUC NJ is talking about lowering the max mag size to 5 (dunno what that means fro revolvers). In WA now, your basic kid's 22 rifle is now classified as an 'assault weapon'. Those, inter alia, don't really sound like the proponents are completely on the Heller bandwagon.

    I'll grant that the 2nd isn't the only amendment that gets ignored from time to time ... there was just an article about a kid in WV getting hassled for objecting to in-public-school Bible study. That was deja vu from 1970 for me :-).

    When we're measuring 'scheming legislators', what's your take on whether more scheming R legislators are trying to pull a fast one on Roe, or scheming D legislators trying to pull a fast one on Heller? My sense is that even the Bible belt abortion restrictions aren't on par with, say, NYC's gun restrictions. You can at least buy your abortion across state lines :-).

    (FWIW, both restrictions bother me. I don't like legislators thinking 'How far can we possibly push the line' regardless of the issue)

  • Sarcastr0||

    Those NJ decisions would seem to me to be within Heller's text, although I will cede not it's intent.

    My argument isn't that all the amendments are ignored, but rather that the logic of the Second meaning no regulations ever proves way to much by misapprehending how rights work.
    Because I don't think those arguing for it are actually thinking of practical operation, but rather self-validation. And nothing validates like victimization!

    I see anti-gun folks from time to time on other forums. They also feel victimized, though their strawmen are more condescending and less sinister.

    As for scheming legislators, I'm not super offended by the anti-abortion pretexts (or not for the reason of the pretext). It's not exactly scheming if one buying the pretext is the occasional lower court.
    But your attempt to compare abortion rights with gun bearing rights shows how silly a game it is to prove whose right is bigger - a service is not the same as a good, and in some places the number of clinics is vastly outstripped by the number of gun stores.

  • Absaroka||

    " and in some places the number of clinics is vastly outstripped by the number of gun stores."

    And in some places, it's not :-). Our nation's capital, for example. And the arguments are similar; the right to an abortion shouldn't be limited to DIY with a coathanger, and the right to arms shouldn't require a personal machine shop to exercise. Yet D.C. seems to be arguing that if the single FFL willing to do transfers (there aren't any actual stores) closes up shop, D.C. residents are just SOL.

    "the logic of the Second meaning no regulations"

    Sure; that's a silly argument for any right. Inmates, for example, don't get much in the way of 2nd (4th, ...) amendment rights.

  • Sarcastr0||

    My point is that you cannot compare levels of rights - it's not an ordinal system.

    We're on roughly the same page about where the correct place for our gun rights paradigm to end up, I think we are on different pages regarding the legitimacy of judges who disagree.

    Illegitimate/bad faith decisions happen, but this doesn't seem to rise to that level.

    Pushing back on the silly argument was my original intent, but as often happens it ends up in some clarifying back-and-forth with some later commenter :-D

  • Brett Bellmore||

    No, they fail the 'in common use' prong. If Heller and McDonald stand for anything, it is that commonly owned firearms cannot be banned.

  • David Welker||

    Sarcastro:

    First of all, I think scheming legislators and illegitimate judges is an empirical description of reality. But, the schemers are both liberal and conservative.

    And if you recall the purpose of our written Constitution, you will remember that the whole point of it is that individuals cannot trust government officials to not abuse their powers. That is why we have separation of power, for example.

    That you mock feat of government abuse as mere partisan self-actualization shows that you do not take the reality and possibility of abuse seriously. That is your bad.

    And let's be clear. Your standard for protecting 2nd Amendment Rights, rational basis review, means no protection. That is the same standard applied to ALL laws, whether they have to do with an enumerated right or not. And you say anyone who objects is silly.

    Reasonable is in the eyes of the beholder. It always has been. If that is the standard, then people are going to have to be ready to fight their government, potentially physically, for their rights back.

  • Sarcastr0||

    It's assumption of government abuse based on no evidence other than not agreeing with what they say.

    Not trusting the government is one thing, paranoia is very much another.

    I'm not arguing for rational basis review - read elsewhere on this page for my normative thoughts. I'm saying only that judges using rational basis as a test are not clearly acting in bad faith. That you equate the two is quite telling.

    As is your predictable lazy threat of civil war.

  • David Welker||

    When we say someone is paranoid, we mean that their fear and mistrust is not justified.

    But I am not sure what that means in this context. Are liberals "paranoid" for not trusting conservative judges to provide robust protections for abortion rights? Are conservatives "paranoid" for not trusting liberal judges to provide robust protections for gun rights?

    I don't think people are paranoid in either case. I think their fears are justified in both cases.

    And I am not threatening civil war. But will assert that there is a problem of interest when we think of the government as the final decision-maker regarding the limits of rights that are supposed to bind the government itself. I think that We the People have to be willing to take things in our own hands if necessary. I think Jefferson was right when he said that eternal vigilance is the price of liberty.

  • Seamus||

    Many liberals seem to have as much passion for disregarding gun rights as many conservatives have for disregarding abortion rights.

    Except that gun rights are clearly in the constitution, right in the words of the Second Amendment, while abortion rights can only be detected if you wear Justice Blackmun's magic eyeglasses while reading the document.

  • David Welker||

    You act as though we don't have a 9th Amendment. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    But here you go, denying and disparaging a right because it is not enumerated.

    What could be a more fundamental and basic right for an individual than to decide what to do with one's own body, based on their own spiritual beliefs or lack thereof? Note that those who want to restrict abortion want to invade this right to in order to vindicate their own spiritual beliefs and religious convictions. What could be more domineering and more invasive of a core liberty than that?

    Of course you feel like you are completely justified in ignoring the rights that the "other side" wants to be protected. I assure you, the feeling is mutual. They, like you, will seek to interpret the Constitution in a way that elevates the rights they favor and denigrates the rights they disfavor.

    Both sides are wrong.

  • Bob from Ohio||

    The right to life is the most fundamental and basic right.

    Abortion eliminates this right for unborn babies.

    "spiritual beliefs and religious convictions"

    My opposition to abortion is neither religious or spiritual. Its scientific. Humans are humans even before birth.

  • Drewski||

    "My opposition to abortion is neither religious or spiritual. Its scientific. Humans are humans even before birth."

    I agree somewhat with the conclusion but you'd have to be kind of simple to think that's something science can determine. That's not what science is or does. It's a definitional argument that will always match your axiomatic definition, which in turn is a matter of belief.

    I mean, evaluating definitional arguments is a thing college freshmen learn in formal logic courses. It is not esoteric. Mistaking that for science is pretty terrible.

  • Bob from Ohio||

    "think that's something science can determine"

    Of course it is. Heartbeat, brain and other organ formation, legs and arms and fingers and toes can all be observed. We can even do surgery on them while still in the womb.

    If they are not human, what are they?

  • David Welker||

    "If they are not human, what are they?"

    First of all, this is a very important and meaningful question.

    And it isn't answered by science or the scientific method either. There is no way to test and confirm a hypothesis about the "true definition" of what this "they" is. It is a definitional question, not a scientific one subject to the scientific method.

    So, the real question to be answered BEFORE we try to answer this is WHO gets to answer this question. Politicians imposing their answers on the rest of society? Or the individual?

    It can be no more core and fundamental right of a person to decide for themselves what to do with their own body. You are free to disagree. Just as liberals will disagree with your core and fundamental right to defend yourself effectively (that is, with a firearm).

    But when we go from disagreeing philosophically about such things to using the political process to persecute and imprison those who disagree with us, that is when we begin to violate the rights of others. And both sides of the political aisle are guilty. The difference is more whose fundamental rights they want to trample rather than whether they want to trample rights at all.

    Both sides are wrong.

  • Lee Moore||

    Bob : Humans are humans even before birth."

    Drewski : I agree somewhat with the conclusion but you'd have to be kind of simple to think that's something science can determine.

    No, that's a pretty straightforward question that science can answer. A human zygote is unmistakeably a new human, meeting all the biological criteria of an "organism" and it is unmistakebaly of the species homo sapiens. Fertiisation takes a bit of time, so there are boundary questions as to precisely when the zygote is formed. But that aside, there's no scientfic question as to the human zygote being a new human organism. The science is no different for humans than it is for dogs, or gorillas or rats.

    We have become a little coy about whether to call a human zygote a "human being" even though it's obviously a "human organism", precisely because "human being" seems to beg the next question which is - is this new human organism the sort of human organism that ought to be recognised as having some moral rights and dignified with the title "human being" ?

    That is the question that science can't answer (though science might help inform the answer.) Because that question belongs to the separate world of ethics. But the question of whether a human zygote is a human belongs to the world of science and it's not a difficult one.

  • David Welker||

    Lee Moore:

    "A human zygote is unmistakeably a new human, meeting all the biological criteria of an "organism" and it is unmistakebaly of the species homo sapiens"

    Where do these "biological criteria" come from? Do they come from nature? No. These criteria come from the minds of people who happen to call themselves biologists.

    Definitions and criteria do not exist in nature. They exist in the minds of humans. The scientific method can test what criteria or definitions things in nature conform to. But it cannot tell us what definitions and criteria are most meaningful and important. Thus, which definitions and criteria are most important is beyond the scope of the scientific method.

  • Lee Moore||

    Definitions and criteria do not exist in nature. They exist in the minds of humans. The scientific method can test what criteria or definitions things in nature conform to. But it cannot tell us what definitions and criteria are most meaningful and important.

    Obviously. But I'm not attempting to defend the notion that the category which biologists term "organism" is meaningful and important (though in fact it is) - I'm pointing out that human zygotes fall within the category so described by biological scientists.

    In the same way, two atoms of hydrogen bonded with one of oxygen is a molecule of water. That's a scientific fact. Sure scientists could have called hydrogen, oxygen, molecule and water by different names, but as they say, a rose by any other name would smell as sweet.

    Whether the category described by the word hydrogen is meaningful and important is clearly a matter for values. But scientists having gone to the trouble of defining what they mean by hydrogen, oxygen, molecule, water and...organism ....they are entitled to report on whether items they inspect fall within those categories. They have so reported. A human zygote falls within the category human organism. Period.

  • Brett Bellmore||

    We're not denying and disparaging the 'right' to an abortion on the basis that it's not in the Constitution, but on the basis that it was invented by the judiciary. The 9th amendment was to protect existing rights, not to give the judiciary a blank check to invent new ones.

    And this was very much a 'right' invented by judges.

  • Absaroka||

    "And this was very much a 'right' invented by judges"

    I'm in a Devil's Advocate mood. Did Martha Washington have a right to an abortion? I'm surely willing to be educated, but my sense is 'probably', in the sense there were no laws forbidding them - because they weren't medically feasible. It's similar to asking whether you have a right to an appendectomy - it wasn't a question the founding fathers ever had cause to consider.

    So: 'The 9th Amendment includes a right to abortion - change my mind!'

  • Brett Bellmore||

    Actually, abortion was a common law offense at the time, a misdemeanor prior to 'quickening', a felony after. That was the common law we had inherited from England.

    The claim that it was legal at the time was based on a lack of statutory prohibitions, it ignores common law.

  • Absaroka||

    Thanks, I learned something today. I had no idea it was medically possible, with the exception of herbal teas or whatever. I wonder how dangerous it was with the medical technology of the day.

  • David Welker||

    The Ninth Amendment does not mention anything about "existing" rights. That criteria comes from your mind.

    And, in fact, the idea that the rights of the people are fixed in stone goes against English legal history, where many basic rights evolved over-time by judicial recognition. In terms of who "invented" certain rights, we often lack the documentary evidence to trace their exact origins. But one things is for sure, all rights were "invented" or, less pejoratively, "recognized" at one point in history where they were not recognized before that. You think this process stopped with the adoption of the Bill of Rights? Well, the text of the Bill of Rights says no such thing. And we have no reason to believe such a thing. That is your political preference, nothing more.

    I would say that the right of an individual to be free from having you, Brett Bellmore, decide how they are to govern the affairs of their own body has always existed. Even if not always recognized. This is not an "invented" right. That an individual has a right to control their own body is fundamental to the autonomy of the individual.

    If you are uncomfortable with that, all I can say is that self-defense is actually an outgrowth of that point. If you have no right to control your own body, there is no need for self-defense either.

  • Lee Moore||

    David Welker : What could be a more fundamental and basic right for an individual than to decide what to do with one's own body, based on their own spiritual beliefs or lack thereof? Note that those who want to restrict abortion want to invade this right to in order to vindicate their own spiritual beliefs and religious convictions. What could be more domineering and more invasive of a core liberty than that?

    From reading your other comments, you seem like a generally open minded sort of guy. So step back and read your own comment here again.

    Of course the right to bodily integrity is fundamental. Which is why nobody disputes it. The question is - what's the rule when your bodily integrity interferes with mine ? Somebody's right to bodily integrity has to give way.

    So the actual abortion debate is not about whether mothers have a moral right to bodily integrity, but whether their unborn children have the same right, equally. And if not equally then to what extent, at what stage of development, and so on. And then the second question - if you get past the first - is what to do when the right of A conflicts with the right of B.

  • David Welker||

    "Of course the right to bodily integrity is fundamental. Which is why nobody disputes it."

    The right to bodily integrity is disputed. If rights were never disputed, there would be no need to recognize them.

    And whether the fetus is even a B is not a question of fact, but is a spiritual and religious question. By having the government decide to coerce A, we are, in effect, imposing our spiritual and religious conclusions upon her.

    Your attempt to reformulate this coercion as something inevitable because a "conflict" exists between A and B and the state must step in to resolve it, is just as wrong as attempting to coerce gun-owners to give up their right to an effective self-defense. We could formulate a similar conflict in that case. There is gun-owner A who, although he or she has not aggressively harmed anyone, must be deprived of the ability to own a gun because C, who is mentally ill, will seek to kill B with a gun. Thus, we have a conflict between the rights of A and the rights of B. So, no problem at all ignoring the rights of A in the name of resolving the conflict between A (who wishes to maintain their bodily integrity through self-defense) and B (who wishes to maintain their bodily integrity by living in a safer world where most people don't have guns).

    In fact, if all it takes to overcome a right is manufacture some sort of conflict, there is no right that can really be protected. Because every right conflicts with some other right.

  • David Welker||

    (cont.)

    And to expand on the point just a little bit, lets consider elite politician P. One major purpose of rights is to protect ordinary people from being coerced, controlled, and ruled over by elite politician P.

    But you say, anytime there is a conflict between A and B that implicate their respective rights, elite politician P can ignore the rights that are supposed to limit P in order to resolve the conflict between A and B.

    Are you seeing the problem here yet? I am not suggesting any easy answers to this problem either. Because, in fact, conflicts (as between an alleged crime victim A and B, whose house might have evidence of the crime) DO justify modifying the rights. Normally, no one has the right to invade your house, but if there is "probable cause to believe" (whatever that means, to be decided by judges and lawyers) that there is evidence of alleged crime in your house, then it can be intrusively invaded by agents of the state.

    So, what I am suggesting to you is this. Merely identifying conflicts between A and B cannot be a sufficient condition if you want to overcome rights that are ultimately meant to keep P in check. Maybe a conflict is a necessary condition, but it cannot always be a sufficient condition. Especially since a conflict can always be manufactured. In the case of abortion, is there even a B? Who decides? Does P decide alone? But aren't these rights made, in part, to limit the power of P in the first place?

  • Lee Moore||

    And whether the fetus is even a B is not a question of fact, but is a spiritual and religious question.

    Obviously.

    If B is a creature with moral rights to bodily integrity (a question of values) and if A is infringing the bodily integrity of B, then we cannot answer the question of whether C ought to (or ought not to) intervene simply by saying "bodily integrity is a fundamental right, and so A should not be interfered with."

    The argument has to be joined on these two points :

    (a) is a fetus a qualifying B ? (a value question, informed perhaps by the science) and
    (b) if it is, what are C's responsibilities as regards any clash between A's and B's rights ?

    The fact that you do engage both these points - questioning B's status and questioning the propriety of government intervention even in the case of a clash of rights shows that you can see they are relevant. What you seem to be missing is that "the right to bodily integrity" doesn't figure in the decision tree. Because it's irrelevant. Either you never get there because the fetus isn't a B, or it scores a draw because both parties have the same right to bodily integrity. So it doesn't figure in a logical discussion of abortion. It's beside the point.

  • Lee Moore||

    Your attempt to reformulate this coercion as something inevitable because a "conflict" exists between A and B and the state must step in to resolve it

    You have misunderstood my point, which I hope the comment above helps you understand better. Both (a) the fetus's status and (b) the responsibiities of third parties (including the government) are matters for moral argument and are not answered by science (though as I say, science may inform the debate, by for example identifying factually erroneous assumptions.)

    But though the right to bodily integrity is itself capable of being questioned in moral argument, it is not in fact so questioned in the debate about abortion, since as I say nobody challenges a woman's choice to have an abortion on the ground that she does not have the same right to bodily integrity as anybody else. The questions are whether there's anybody else involved in an abortion that has the same right to bodily integrity as her, and if so, whether any third party should be involved in preventing, moderating or punishing any infringement of those rights. Which are, of course, complicated moral questions. Far more complicated than the traditional abortion polemics allow.

  • David Welker||

    Lee:

    First of all, sorry about the double post earlier. This website is acting a little strange.

    "Far more complicated than the traditional abortion polemics allow."

    I agree with you that the question is complicated. So complicated, in fact, that it is not capable of objective resolution.

    Let's take the issue of gun rights as well. Because that is an equally complicated moral quandary. Let us say, for the sake of argument only, that evidence suggested (without definitely proving), that eliminating gun rights entirely would decrease homicide and suicide. Let us further suppose that the evidence would suggest (again, without definitely proving) that in certain individual cases, people would be victims of homicide, forcible rape, stabbings, etc. because of such rights were eliminated. Not only that, the evidence also showed that the people most likely to be these "certain individuals" were those that were perceived as lacking the physical strength to defend themselves otherwise (all other things being equal, being a woman, elderly, having a disability, or just being physically weaker made it more difficult for people to defend themselves, and thus more likely to be a victim).

  • David Welker||

    (cont. part B)

    Let's assume these facts are true. Do, all of the people who would like to take personal individual responsibility for their own self-defense have an obligation to give that personal and individual power away for the "greater good" of less homicide and suicide overall? Must we all surrender our rights to self-defense because some among us are mentally ill? Even if, in some individual cases, our individual chances of being a victim of harm greatly increased?

    I don't know how you feel about it. But I generally do not think that individuals have an obligation to sacrifice themselves for the greater good. If a healthy individual with a rare blood type can save 20 people who need organ donations, merely by agreeing to being euthanized and having their organized "donated" I do not believe that the individual has a duty to do so.

    But, it goes deeper than that. Let us say that you disagree with this assertion. If a person can save 20 lives by sacrificing their own, let us say that you personally believe they have a moral obligation to do so. I would not have a problem if that was your own personal view.

  • David Welker||

    (cont. part C)

    At the same time, I think a government that could IMPOSE such a moral view would be a thing to be feared. The issue is not that being able to give your life to save 20 others isn't a genuine moral quandary. That is a genuinely difficult issue, just is abortion and just are gun rights. The issue of empowering elite politician P to coerce all of society to come to the same answer to this moral issue is the problem. Especially since we have reason to believe that someday, P may not merely coerce 1 person to give his or her life to save 20 other lives, but may use that same power to coerce 20 people to give their lives to benefit just 1 person. This may seem like a contrived example, but it reflects an underlying reality. The reality of a governing elite "sacrificing" the well-being of the many for the interests of a few is an objectively verifiable assertion of what has happened throughout most of human history and which continues to happen to this day.

  • David Welker||

    Lee:

    What I think is most relevant here is WHO gets to answer question (a). Does C (or as prefer to call them, P for politician) get to decide the question?

    Well, since the question is, as you concede, ultimately spiritual and religious rather than factual or scientific (even if a person's spiritual or religious conclusions might, in particular cases, be more or less informed by facts and science), I think the proper answer is that A gets to decide. And by that, I mean not only A, but everyone gets to decide for themselves. In fact, P gets to answer this question too. But only to govern their own life and not the life of everyone else.

    I think from a social perspective, given the nature of the question, the most important answer is not the answer to the question itself (which is not capable of objective resolution), but the answer of WHO gets to answer the question and WHAT is the scope of power given that answer. Does their answer to the question govern and control the lives of others, or does it only govern and control their own lives?

    People governing themselves, to the extent that it is practical, without interference from politicians is what actually gives people equality and dignity. If we want to override that, we need more than a different opinion about spirituality and religion.

    This is enough to establish abortion as an important right. Just as effective self-defense with a gun is an important right.

  • David Welker||

    Lee:

    What I think is most relevant here is WHO gets to answer question (a). Does C (or as prefer to call them, P for politician) get to decide the question?

    Well, since the question is, as you concede, ultimately spiritual and religious rather than factual or scientific (even if a person's spiritual or religious conclusions might, in particular cases, be more or less informed by facts and science), I think the proper answer is that A gets to decide. And by that, I mean not only A, but everyone gets to decide for themselves. In fact, P gets to answer this question too. But only to govern their own life and not the life of everyone else.

    I think from a social perspective, given the nature of the question, the most important answer is not the answer to the question itself (which is not capable of objective resolution), but the answer of WHO gets to answer the question and WHAT is the scope of power given that answer. Does their answer to the question govern and control the lives of others, or does it only govern and control their own lives?

    People governing themselves, to the extent that it is practical, without interference from politicians is what actually gives people equality and dignity. If we want to override that, we need more than a different opinion about spirituality and religion.

  • Lee Moore||

    People governing themselves, to the extent that it is practical, without interference from politicians is what actually gives people equality and dignity.

    Sure, but individual persons are, on that basis, entitled to enter into free association with other individual persons to achieve commonly agreed goals. And some of those associations may become powerful enough, and have amongst their goals, suppressing what they see as threats to, or transgressions against, their members.

    So your anarchist, or libertarian, utopia fails to take account of the possibility, nay likelihood, that bands of roving Mooreists will band together, call themselves the government, and impose their will on you by force. They may in time choose to call themselves "the government" and put about the idea that you should obey their rules for the greater good, whether you joined voluntarily or not. You will of course be morally entitled to refuse to obey. But then, so you are now, and much good it does you.

    Of course I agree with your cry to let people govern themselves, but unless you provide some account of how, in practice, you are to prevent me and my pals choosing to govern you, you're whistling in the wind. History indicates that very powerful governments are horrible. But it also indicates that anarchy's not much fun either. And the elections we have from time to time indicate that the amount of government we have now is roughly the amount that most people are willing to put up with.

  • MatthewSlyfield||

    " And the elections we have from time to time indicate that the amount of government we have now is roughly the amount that most people are willing to put up with."

    Willing to put up with is not equal to want/desire.

    In this context, I would state it thus: The amount of government we have now is not yet enough to make a significant number of people consider armed rebellion to be a valid option.

    The yet is important. It seems to be a fundamental property of governments in general that they will try to become bigger/more powerful over time.

  • David Welker||

    Lee:

    In my opinion, you have really gone off the rails here.

    "So your anarchist, or libertarian, utopia"

    First of all, I am neither an anarchist nor a libertarian, but instead a liberal and a progressive.

    Second of all, my expectation and demand that you and your friends mind your own business instead of trying to run the lives of other people is just common-sense, and not a utopia.

    Your idea that "you and your pals" are going to form the government because you can't stand the idea of minding your own business is hubris to the highest degree. But be rear-assured, if your bizarre fantasy were to happen, "me and my pals" would do something about it and make you regret your hubris.

    America was founded in a background where competing religious factions in Europe would regularly slaughter each other for believing the wrong thing. Moving away from that was just plain common sense, not an unachievable utopia.

  • Lee Moore||

    Second of all, my expectation and demand that you and your friends mind your own business instead of trying to run the lives of other people is just common-sense, and not a utopia.

    No. Without enforcement, applied to those who do not choose to play ball, it's utopia.

    Your idea that "you and your pals" are going to form the government because you can't stand the idea of minding your own business is hubris to the highest degree.

    Again, missing the point royally. What is government ? It is the enforcement mechanism and you don't get an option on whether it applies to you. There is no conceptual difference between a "government" and my band of thugs, unless you are willing to concede some kind of legitimacy to one rather than the other. They both tell you what to do and impose sanctions, whether you like it or not.

    "People governing themselves" is nonsense. Without government you are left with bands of marauding warlords. And from a historical point of view, the government is just the warlord who won. The reason to accept the dominion of a reasonable government is because the alternative is not "people governing themselves" - it's an unreasonable government, or bands of marauding warlords, which after a lot of mayhem, will resolve into an unreasonable government.

    The reason why we defer to contemptible creatures like politicians, when they band together and enact a law, is that you will enjoy deferring to rulers who aren't politicians a lot less.

  • David Welker||

    Lee:

    You have definitely gone off the rails.

    "No. Without enforcement, applied to those who do not choose to play ball, it's utopia."

    Under your definition of utopia, if a person advocates for the school day to start at 8:00 AM instead of 7:30 AM at a particular public school, that is also a utopia, just so long as there is not "enforcement, applied to those who do not choose to play ball."

    That is not what the word "utopia" means. Utopia does not mean "enforcement." Utopia means that someone is advocating for an ideal system that is not practical. Getting you to mind your own business is both practical and possible.

    "'People governing themselves' is nonsense."

    If someone get's to decide what time to wake up on Saturday morning "all by themselves" then they are governing themselves with respect to that issue. In contrast, if a government authority told them what time they needed to wake up and enforced this prohibition with sanctions, then they would not be governing themselves with respect to this issue.

    There is nothing "nonsense" about people making their own decisions about how to run their own lives without "you and your pals" interfering.

    As for your distinction between "politicians" and other "rulers" you have made a category error. All rulers are politicians, although, not all politicians are rulers. We have this thing called limited government. Maybe you should look it up.

  • Lee Moore||

    the 'Make no Law' bit in the First Amendment is also being ignored

    True, though plaintiffs seem to defeat assaults on their 1st Amendment rights more often.

    En passant, though, I'll note that many assaults on 1st and on 2nd Amendment rights are by state and local governments and if you leave aside the judge made law on incorporation, the text of 1A binds Congress only, whereas the text of 2A is a general command. So all other things being equal, a neutral textualist judge-bot should be ignoring 1A chalenges much more often than 2A challenges.

  • Sarcastr0||

    If you want to go to war on incorporation, feel free. But to me, tearing down the edifice of other laws to elevate the Second isn't about philosophy or jurisprudence, it's about identity.

  • Lee Moore||

    1. I do not wish to go to war on incorporation, since I have never taken the trouble to try to understand the legal arguments for and against. I am sceptical of almost anything that is alleged to emerge from the vague potage of words found in 14A, but if someone like Thomas is prepared to put up with it, then maybe there's a there there.

    2. My point was that as far as the 2nd Amendment is concerned, we good textualists don't even need to worry about incorporation, since the text is a general injunction, not one specfic to Congress as with 1A. Different constitutional amendements actually have dfferent words in them. Reading the actual words in each one and understanding them to mean something different to the different words in other amendments does not amount to jurisprudentail vandalism. IMHO.

    3. My personal, heretical, view on policy is that I'm a lot keener on 1A than 2A. If I was writing 2A from scratch myself, it would be hedged about with several of the conditions that the courts have "found" to be hidden within the existing text. Whereas 1A would be hedged about with hardly any conditions at all. Identity ? I don't think so.

    So I'd say you're 0 for 3 here.

  • Sarcastr0||

    You good textualists have a bunch of ambiguity remaining, especially about the predicate of 'shall not be infringed.' Your argument is plausible, but hardly the only one. You choose a strong one there, but a weak one for the Fourteenth. Neither of those choices is dictated by the text, but by your view. Which is why I say it's about identity.

    Concur on your number 3 - the 1A contains a bunch of subsidiary rights regarding individual viewpoints; it's pretty vital especially because we've never really incorporated it into our identity like we have the right/obligation to defend oneself.

    But I do believe the 2A reflects a right to self defense that is strong and individual.

  • David Welker||

    Sarcastr0:

    I agree with you when you point out that disagreements about interpretation often come down to issues of identity. I disagree with you when you go on to assert that identity is separate from philosophy and jurisprudence. This platonic separation has never existed in practice. If you want to talk about things that have been true since the Founding and even before that.

    I think acknowledging the truth of how law exists in practice rather than theory changes the way we go about protecting rights. A liberal judge who dislikes gun rights cannot be trusted to effectuate those rights if the standard is that any "reasonable" restriction is just fine as a conservative judge cannot be trusted to effectuate abortion rights if any "reasonable" restriction is just fine. That is because, in reality as opposed to theory, judges do not separate their identity from philosophy and jurisprudence.

  • Lee Moore||

    Of course "shall not be infringed" like any collection of words, is open to various interpretations. Competing parties have to produce their interpretations and duke it out.
    As to my interpretation - I perceive no limit to who is enjoined, unlike 1A. "shall not be infringed" is plainly wider than legislative action - the executive is quite capable of "infringing" by lesser deeds than Congress requires to enact a law.

    Moreover a prohibition on "infringing" involves a much more jealous guarding of a right than a prohibition on breaking or altering or restraining where there may be scope for arguing threshold issues - ie is this enough to break, alter or restrain a right. Infringement, which incorporates the concept of a fringe, implies "one tiny toe on my fringe and you're toast." Even compared to "abridging" in 1A, you'd be hard pressed to argue that you could abridge something without infringing it. Whereas I think you could infringe something before you abridge it.

  • Lee Moore||

    Whereas "equal protection of the laws" ? That begs for clarification. How does "protection" differ from mere "application" ? And since laws have to be written to apply to some things and not to other things, they must necessariy apply unequally to people do the forbidden things and so who break the law, and people who don't. There has to be an unspoken exception for the inevitable discrimination between persons that any law entails. But what is its scope ?

    One gets a general gist, of course, but the gist I get is not demonstrably preferable to the gist you get, by mere appeal to the text. (Except, perhaps, if I wish to limit the equal application of the laws to those that "protect" while someone else might prefer to read protection as if it were a synonym for application.)

    But - "stay off my fringe, dude" - you have to be seriously into sophistry to summon up any substantail ambiguity from that.

  • Brett Bellmore||

    I understand equal protection to require literally that: Equal protection.

    If the state would enforce the law against a lynch mob going after a member of one group, it must enforce it if the mob is going after a different group. Equal protection was to prevent states from placing disfavored groups beyond the protection of the law. It is selective enforcement that the equal protection clause bars.

    This was a very real problem at the time.

  • MatthewSlyfield||

    "This was a very real problem at the time."

    It still is.

    Selective enforcement is a practical necessity because there are too many laws.

    The government doesn't have the resources to fully prosecute every violation of every law, even if they wanted to.

  • Naaman Brown||

    Why not the fourth? Being out in public is not probable cause to support a search ala stop'n'frisk.

  • JohnpH||

    I'm curious, if :shall not be infringed" does not mean shall not be infringed, then just what does it mean and why did the authors of the amendment use that phrase?

  • loveconstitution1789||

    The 1st Amendment has been run over too.

    With that being said, the 1st Amendment does not protect assembly that is not peaceful.

  • Sarcastr0||

    It protects a bunch of other stuff too.

    As I said, your Constitutional understanding is a lot more strict than the Founders was.
    And you can see why with a moment's thought - your inviolate line-drawing style of rights is rather impractical for governing.
    No more time/place/manner regs for speech, free exercise as an exception that swallows whatever regulation you want, no more ceremonial deism in your Establishment Clause...

  • Bob from Ohio||

    "rather impractical for governing"

    Yes, the point of the amendments.

  • Sarcastr0||

    Not as they operated literally during the Founding. Even ignoring (as one should) the Alien and Sedition Acts, they were not taken as inviolate.

    Excuse my understatement - I didn't mean 'not as easy as governments might like' I meant 'literally impossible to govern a society under the simplistic rubric loveconstitution1789 wants to impeach everyone for not following.

    I provided examples of how different this would be for the First Amendment. And I didn't even get to press or petition!

  • Bob from Ohio||

    "Not as they operated literally during the Founding."

    Everyone is an originalist when need be.

  • Sarcastr0||

    Oh, you know I'm not an originalist. I'm just noting the contradiction in loveconstitution1789's logic.

  • Bob from Ohio||

    "I'm just noting the contradiction in loveconstitution1789's logic" by making an original public meaning argument.

  • David Welker||

    "Even ignoring (as one should) the Alien and Sedition Acts, they were not taken as inviolate."

    "as one should"

    REALLY????

    What other inconvenient facts about the world do you think we should just ignore? What is the justification?

  • Sarcastr0||

    ...Do you want to make policy based on the Alien and Sedition acts as precedent?

  • David Welker||

    Are you suggesting that my personal preference "what I want" ought to be an input into the law?

    There is less point to precedent if we go about ignoring inconvenient precedent and inconvenient facts.

    This goes back to the original point. When it comes to individual rights, mere precedent is not much of a defense. We will find ways to disregard what disturbs us and elevate what we like. And certainly saying that restrictions have to be reasonable isn't much of a defense either.

    First Amendment jurisprudence works only when content-based restrictions are viewed as generally forbidden and historical exceptions are interpreted narrowly (i.e. precedent we don't like because it fails to protect speech is largely ignored rather than having its logic extended into new domains). We don't proceed to successfully protect speech rights or any other rights starting from the premise that "reasonable" restrictions on speech whose content we don't like is constitutional.

  • Brett Bellmore||

    They all Nader enforce the 2nd amendment. Some of the also under enforce the Heller/McDonald rulings, too.

  • Brett Bellmore||

    Stupid auto-mistake!

  • Dilan Esper||

    Unsafe at any caliber!

  • MatthewSlyfield||

    Shouldn't that be muzzle velocity rather than caliber?

  • loveconstitution1789||

    You should never have more than 10 words in a sentence. For gun safety.

  • MatthewSlyfield||

    Or more than 10 paragraphs in a news article.

  • Naaman Brown||

    Or more than ten articles in a magazine.

    And a background check for buying magazines.

  • Sebastian Cremmington||

    I think the Supreme Court wants to avoid creating another "movie day at the court" scenario like they did with obscenity. Arms have always been regulated in America and quite a few regulations exist.

  • loveconstitution1789||

    Its the SCOTUS' job to address national issues that typically impact large swathes of the United States.

    Americans might have opinions about the cases.

  • Sebastian Cremmington||

    We have a limited right to open carry and the reality is Bush signed the federal school zone legislation into law in 1990 and he was pro-2A. So even those people that hold themselves out as 2A supporters believe guns should be regulated outside the home. The Supreme Court shouldn't waste their time wading into an issue that is settled at the political level.

  • RoyMo||

    This argument is terrible:

    X supported a1, and X is in favor of A, therefore all people who oppose a1 and are in favor of A are hypocrites for opposing a2.

    But this argument is a lot better than the one that begins with:

    TWENTY YEARS AGO X supported a1...

  • Sebastian Cremmington||

    "A judge must interpret the Constitution as written, informed by history and tradition and precedent."

    JUSTICE Kavanaugh

    It burns doesn't it. Can you even bring yourself to utter the words "Justice Kavanaugh"?

  • RoyMo||

    Easily, but then I never had trouble saying Justice Fortas, Justice Black, or Chief Justice Taney. It is a title for Pete's sake. Oliver Wendell Holmes Jr was a Justice, so clearly it has no more to do with Justice than Serene Highness has to do with the House of Grimaldi.

  • Brett Bellmore||

    How did the Court get away from having "movie days", though? Not by allowing more censorship. By taking "no law" more literally!

    They could avoid "range time" in the same way: Not by permitting gun control, but by being serious about upholding the 2nd amendment until the lower courts gave up and went along with it.

  • Sebastian Cremmington||

    For most of its existence Texas made carrying of handguns illegal while allowing open carry of long guns. So the 2A appears to allow regulations of arms, and as long as it is legal to carry some arm outside the home the state is not infringing the RKBA. So California actually allows the open carry of flame throwers for self defense outside the home so the state is not in violation of the 2A.

  • RoyMo||

    Is it remotely possible that the State of Texas was once wrong about a basic civil right?

  • Sebastian Cremmington||

    No, because their state constitution contained language similar to the 2A. Tell me, why was it necessary for a guy with a 206 IQ to develop the underlying rationale in Heller some 200 years after ratification if the 2A is so plain-spoken??

  • RoyMo||

    The Texas State Constitution of 1869 did not have the same lamguage as the Second Amendment. It said:

    SECTION XIII. Every person shall have the right to keep and bear arms, in the lawful defence of himself or the State, under such regulations as the Legislature may prescribe.

    In 1877 the new Constitution said:

    SEC. 23. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power by law to regulate the wearing of arms with a view to prevent crime

    This is a lot weaker protection than "Shall not be infringed"

    Also the Constitution said

    All free men when they form a social compact have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

    Yet that never got in the way of segregation or not having a Law School that admitted African Americans.

    I am sure your argument sounded great shen you first heard it, but it has clearly never been challenged by anyone who had any idea what they were talking about.

  • Sebastian Cremmington||

    Thanks for strengthening my argument! The Texas constitution clearly states the RIGHT kba is subject to regulations!!! I stated the exact same thing!! We have a RIGHT that can be regulated! That is how Americans have always understood this particular right.

    Thanks for the help, generally commenters will just go away when they lose an argument, but you actually help me advance my argument.

  • Naaman Brown||

    Tennessee Article I declaration of rights, Section 26 also includes "the Legislature shall have power by law to regulate the wearing of arms with a view to prevent crime" language. The regulations must not unduly burden traditional lawful uses. I have seen in my lifetime several restrictions removed in Tennessee as not really preventing crime.

    California and New York however advance restrictions and prohibitions under the mantra if it's against guns it's gotta be good and Schumer and Feinstein want those bans incorporated into federal law overriding my state RKBA protections.

  • RoyMo||

    No because your argument was that the Texas Constitution protected gun rights the same as the Second Amendment to the US Constitution, which it explicitly does not.

  • Naaman Brown||

    What was Larry Tribe's IQ when he studied the issue and came to the same conclusion in "The Embarrassing Second Amendment"? Or the researchers who produced the 1981 study ordered by the government? Or Don B. Kates who wrote the article on Second Amendment in Levy's Encyclopedia of the America Constitution? It was not necessary for Eugene Volokh to develop the underlying rationale, but some people are so pig headed it takes a patient explanation by someone with a 206 IQ to point out the obvious.

    Pretending that no one saw the obvious until Volokh applied his 206 IQ is inane.
    The body of pre-Volokh "The Commonplace Second Amendment" (73 NYU L. Rev. 793 (1998)) is actually quite large and comprehensible even to my meager IQ.

  • Naaman Brown||

    "The Embarrassing Second Amendment" by Sanford Levinson citing Laurance Tribe and others' research in Yale Law Journal, Volume 99, pp. 637-659

  • Sebastian Cremmington||

    I wrote pretty much exactly what was in Stevens' dissent leading up to Heller in this comment section...it doesn't take a genius to know what the state militias were and the name of our country is the United STATES of America!!! Btw, Ted Cruz is a genius but nowhere in his amicus brief does he deal with the phrase "free state" which Volokh only got to in 2007!! Yes, Scalia cited Volokh from 2007 to define "free state" as free country but even Cruz wasn't certain that would fly in a Supreme Court opinion.

  • Brett Bellmore||

    For most of Texas' existence, the 2nd amendment wasn't incorporated. And, in fact, most of the gun laws that were 'traditionally' in place at the state level were Jim Crow laws, meant to be enforced against blacks and other disfavored minorities even if written in general terms.

  • RoyMo||

    Especially since if the law had said that it applied only to members of a disfavored race it would be facially unconstitutional and some Republican judge would strike it down. Democrats have always possessed this sort of animal cunning.

  • Junkie||

    Florida's Supreme Court said, in Watson v Stone (1941), that their carry law "was never intended to be applied to the white population and in practice has never been so applied".

    California banned open carry because black people started doing so, even though that was well into the Civil Rights era (1967).

    Gun laws have long been intended to disarm blacks.

  • Sebastian Cremmington||

    Wow, I though HW Bush was the greatest president ever and now you are telling me he signed racist legislation intended to ensnare blacks driving through school zones!?! I think I'm going to faint!

  • Jimmy the Dane||

    I would clarify this by stating that may issue laws were meant to apply disproportionately to black people especially in the South. Whites held the positions that were granted discretion to issue permits (such as the local sheriff). It wasn't until the 70's that may issue was converted to essentially no issue because states feared equal protection challenges that had been largely successful in federal courts on other issues to affect the issuance of gun permits. So instead of just giving blacks equal access under the same criteria used for whites, it was just decided no carry permits for anyone.

  • Sebastian Cremmington||

    NO JUSTICE NO PEACE!!

  • Brett Bellmore||

    It wasn't just a fear of equal protection challenges. The political elite were starting to become a distinct group in society, losing their connection to the larger population. As they did, they shifted from not trusting minorities with guns, to not trusting people in general.

    Rather than giving minorities the rights of the majority, they wanted to lower the majority down to the minorities' status.

  • Sebastian Cremmington||

    So Reagan didn't trust people in general when he signed gun control measures as governor of California?? And then a year later the conservative wing of the Republican Party pushed Reagan as an alternative to Nixon.

  • Brett Bellmore||

    What, you think Reagan was perfect? I sure don't.

  • Sebastian Cremmington||

    You should join the New Black Panthers Party! You are like a combination of Bobby Seale and William Kunstler!!

    The revolution will not be televised!!

  • Sebastian Cremmington||

    Nope, the strict handgun regulations were implemented after the civil war by Republicans and weren't Jim Crow laws. Nice try though.

  • Absaroka||

    Here's a link to Justice Buford's concurrence that's the source of Junkie's quote (click on the 'Concurrence' tab). Here's another excerpt:

    "I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers..."

    That sounds pretty Jim Crow to me.

    I think that comparisons of long ago party positions to current ones is pretty silly, but since it seems to matter to you according to wikipedia Florida only elected one governor who wasn't a Democrat between 1877 and 1967, and the exception was from the Prohibition Party.

  • Sebastian Cremmington||

    So the school zone legislation is racist??

  • Bob from Ohio||

    No, just unconstitutional because the federal government [not even mentioning the 2A] has no authority to ban guns on school grounds.

    States do, not the US government.

  • Sebastian Cremmington||

    So it is unconstitutional even though Republicans in states like Texas have embraced it?? Contrast that with the Alien and Sedition Acts along with campaign finance which were understood to be unconstitutional when passed.

  • Bob from Ohio||

    Yes, the Constitution does not enshrine the views of Texas Republicans.

  • Sebastian Cremmington||

    According to JUSTICE Kavanaugh it does.

  • Naaman Brown||

    Sebastian Cremmington | 12.27.18 @ 3:46PM
    So the school zone legislation is racist??

    No it is just stick on stupid like most gun control laws (and their supporters).
    Pursuant to 18 U.S.C. § 921(a)(25):
    The term "school zone" means—
    (A) in, or on the grounds of, a public, parochial or private school; or
    (B) within a distance of 1,000 feet from the grounds of a public, parochial or private school.

    My home was well within the federally designated 1,000 feet school gun-free zone when that passed. Few years later the school bought out half-a-block of houses for expansion and now I'm 160 feet deeper inside the "gun-free school zone". If I go to the mountain, or go to a shooting match at the gun club, I have to essential act like I am smuggling contraband. But the idea that law has stopped spree shooters or terrorists is a sick joke.

  • Naaman Brown||

    In Watson 1941 Justice Buford pointed out that the 1902 permit law was not enforced against anyone with standing to challenge it (Florida resident, especially white Floridian) because it was in violation of both the Florida state constitution RKBA provisions and the federal constitution Second Amendment.

  • Naaman Brown||

    Like a lot of 19th and 20th century gun laws it was enforced with a wink and a nudge at discretion only against those unlikely to be able to mount a defense in court.

    Florida Supreme Court. Watson 1941, Justice Rivers H. Buford opined:

    I concur in the judgment ... because I think that [the permit law] is unconstitutional because it offends against the Second Amendment to the Constitution of the United States and Sec. 20 of the Declaration of Rights of the Constitution of Florida. .... I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps.
    The same condition existed when the Act was amended in 1901.... The statute was never intended to be applied to the white population and in practice has never been so applied. ... it is a safe guess to assume that more than 80% of the white men ... have violated this statute [and] that not more than 5% of [white or negro Florida men] who own pistols and repeating rifles have ever applied ... for a permit .... there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested.

  • Sebastian Cremmington||

    I feel like I am at Black Lives Matter rally! No justice no peace!

  • Naaman Brown||

    Sebastian Cremmington | 12.28.18 @ 1:16PM
    I feel like I am at Black Lives Matter rally! No justice no peace!

    Get the feeling for real!
    Congress of Racial Equality, amicus brief, D.C. v Heller.

  • Sebastian Cremmington||

    You are like a combination of Malcom X and Thurgood Marshall! When I read your comments I listen to Public Enemy!

    FIGHT THE POWER!

  • David Welker||

    "For most of its existence Texas made carrying of handguns illegal while allowing open carry of long guns. So the 2A appears to allow regulations of arms..."

    I can play this game too!

    "For most of its existence before Brown, Texas had laws whose purpose was to discriminate against blacks. So, it appears the 14A allows states to pass laws discriminating against blacks."

    Nevermind though, Voltaire already wrote Candide about how wrong this line of reasoning is.

  • Sebastian Cremmington||

    Take it up with Justice Kavanaugh who uses "history and tradition" to inform his rulings. In the Texas constitution cited above it states very clearly—Texans have a RIGHT kba, and that RIGHT can be regulated. So based on tradition and history Americans did not believe the RKBA was an absolute right.

    Btw, 2A supporters scream RACISM more than Al Sharpton.

  • David Welker||

    "Btw, 2A supporters scream RACISM more than Al Sharpton."

    Are you denying that Texas during the relevant time period was racist?

    Or are you just trying to deny the implications of your logic?

    Traditionally, there is a tradition and history of discrimination against African-Americans that was considered lawful. So, based on tradition and history, Americans did not believe that African-Americans had an absolute right to be free from race-based discrimination.

    And I would love to take it up with Kavanaugh as well. But, for now, I will just settle with taking it up with you. We may have a tradition and history, but I don't think that means we should always follow it.

    FYI, we also have a tradition and history of having much bigger and broadly interpreted exceptions to the First Amendment than we have nowadays.

  • Sebastian Cremmington||

    Reagan signed the Mulford Act and Bush signed the school zone legislation. They were RACISTS!!!

    NO JUSTICE NO PEACE!!!

  • David Welker||

    You seem to be using the word "racist" as a way to change the subject from the logic of your argument to the importance of your "feelings" about how people use or misuse the word "racist."

    But I think it is a fact that racism was quite prevalent in Texas in the era in which it imposed Jim Crow laws. Do you disagree?

    More importantly, the logic of uncritically embracing tradition and history as something to always be continued into the future would imply embracing discrimination based on race, would it not?

    Feel free to respond emotionally again if you don't feel up to answering those two questions.

  • Sebastian Cremmington||

    You have made your point very clearly—Ronald Reagan was a RACIST and you believe Americans should be able to open carry through the US Capitol and White House.

    FIGHT THE POWER!!

  • David Welker||

    Sebastian:

    Your approach to interpretation is definitely very different.

  • Sebastian Cremmington||

    I will grant you that it is a great irony that Reagan signed a law in response to the Black Panthers promoting blacks forming unorganized armed militias to "copwatch" and now modern day conservatives oppose BLM's "copwatching" while arguing a law signed by Reagan in order to restrict the Black Panthers has racist undertones and violates the 2A.

    YouTube has a video of an armed Huey P Newton at the California Capitol with Reagan nearby and Newton is vocalizing that his RKBA is being infringed as the Capitol police harass him. So I will also grant you that no intellectually honest person can argue that by "history and tradition" Americans do not have a RKBA. We clearly have a RKBA, but I do not know if the Supreme Court wants to wade into setting the parameters of a right when in 1967 Huey P Newton believed the right extended to the California Capitol building with the governor nearby.

    I will also add as I have added before that I am thankful for the VC contributors that developed the underlying rationale for Heller because I believe the RKBA is integral to the right to privacy—they are truly great Americans that have made America stronger.

  • Alan Vanneman||

    It's arguable (by me, at least), that Scalia, in retribution for the success of the "so-called homosexual agenda", as he liked to call it, had his revenge in a decision that overturned a Washington, DC ordinance and 1) "found" a constitutional right of self defense, 2) "found" a constitutional right to a hand gun in order to properly exercise that right, and 3) similarly found a constitutional right not to have one's trigger finger impeded by the trigger lock mechanisms required by the nefarious, liberal, and entirely coincidentally largely black District of Columbia, all without affecting any previous federal statute.

    The grudging acceptance accorded this and its companion decision applying these restrictions to state law rather reminds one of the grudging acceptance accorded Rowe v. Wade. As Huckleberry Finn liked to say "Overreachin' don't pay."

  • Caphon||

    Just like lawsuits, anybody can argue anything, doesn't make them sensible or winnable. I would encourage you to think about simpler approaches than conspiracy and dramatic intrigue. Maybe you're searching for cognitive consonance rather than evaluating the written decision on its merits.

  • Sebastian Cremmington||

    You need to re-read Stevens' McDonald dissent. We do have a right to keep guns in the home for self defense it just has nothing to do with the 2A.

  • Brett Bellmore||

    You need to remember it was a dissent. By a justice who despises the right the amendment in question was adopted to safeguard.

  • Sebastian Cremmington||

    Stevens' McDonald dissent is the proper rationale to get to a right to keep guns for self defense, and if you had been around here post Heller while pre McDonald you would have read my comments that ended up looking very similar to Stevens' dissent. I don't need justices to tell me my opinions because I have a brain that I can use to come up with my own opinions informed by tradition and history.

  • Brett Bellmore||

    Google seems not to have recorded any comments either at Reason or Volokh by a Sebastian Cremmington, during that period. Were you perhaps using a different handle?

  • Sebastian Cremmington||

    Check out "when Scalia was able to hold the majority in Heller" and my username was porterhouse.

  • Alan Vanneman||

    Uh, maybe you should reread it. Here's what the distinguished justice has to say:

    "Indeed, there is a good deal of evidence to suggest that, if anything, American lawmakers tend to underregulate guns, relative to the policy views expressed by majorities in opinion polls. See K. Goss, Disarmed: The Missing Movement for Gun Control in America 6 (2006). If a particular State or locality has enacted some "improvident" gun-control measures, as petitioners believe Chicago has done, there is no apparent reason to infer that the mistake will not "eventually be rectified by the democratic process." Vance v. Bradley, 440 U. S. 93, 97 (1979)."

    Stevens also spends a good deal of time ridiculing Scalia's "colorful" opinion in Heller.

  • Sebastian Cremmington||

    Heller is an absurd opinion but it at least gets to the proper result through the pretext of an originalist interpretation of the 2A (Scalia's opinion is really a broad constructionist opinion which clearly renders incorporation unnecessary).

    But an intellectually honest "liberty interests" analysis would result in Stevens finding a right to keep guns in the home for self defense. Stevens transparently undermines his own analysis out of political expediency.

  • Joe_dallas||

    Stevens dissent undermines his own originalist" analysis by citing numerous historical writings that the right was for the common defence (collective right) but denied the numberous historical writings discussing the individual right.

    Further he failed to note that there was zero historical writing discussing the 2A right was limited to participation in the militia. The absense of such discussion and/or writings is a strong indication that such a proposition was never the intent of 2A.

  • Sebastian Cremmington||

    So it is an individual right that only people living in federal territory enjoyed even though the 2A clearly states it is necessary for a "free country"?? And many of the states adopted language similar to the 2A and then started regulating arms in the decades after ratification as well.

  • Naaman Brown||

    While we are in Stevens' opinions, Stevens in his "Six Amendments: How and Why We Should Change the Constitution" proposed re-writing the Second Amendment to "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed." If the 2A does not mean an individual right as described in Eugene Volokh, "The Commonplace Second Amendment" or Sanford Levinson, "The Embarrassing Second Amendment", why would the Bill of Rights need be edited to make clear the meaning seen by Stevens?

  • Sebastian Cremmington||

    The 2A is clear but Heller distorts the prefatory clause as pretext to find a right to own guns without using right to privacy rationale...so adding that phrase would appear to be necessary in order to reinstate the amendment's original meaning. Nonetheless, history and tradition make it clear Americans have a right to keep guns for their for self defense while outside the home guns have been subject to more regulations.

  • Social Justice is neither||

    So no right to self defense anywhere else? How nice.

  • Rich7553||

    How did SCOTUS arrive at the Caetano decision, in which the facts of the case occurred completely outside Caetano's home?

  • Naaman Brown||

    Human beings have a right to free expression and exchange of ideas that has nothing to do with the 1A.
    Having the 1A in the BoR helps protect that right. Because if a human right is not specifically protected, some people think it can be restricted out of existence.

    Heller was about a ban on handguns and a prohibition on having an operable firearm in the home for self-defense in D.C. McDonald was about ban on handguns in Chicago Since the 1960s the anti-gun crusaders have promoted bans under the banner of NO Right to Bear Arms for the people, government only, particularly New York lefties and democrats.

  • Bob from Ohio||

    Unsurprising.

    Federal judges, including conservative leaning ones, share the prejudices and biases of the [so called] "elite" class. That class looks down at people who have guns.

  • DrCoke||

    CORRECTION: "That class looks down at other people who have guns."

  • WJack||

    Ruben and Blocher apparently are not acquainted with scientific research methodology, or perhaps do not understand the difference between enforcement and not enforcing. See the third paragraph in Kopel's article above.

  • Jimmy the Dane||

    The problem with social science "studies" such as this one is they have a conclusion then come up with a methodology that will find the intended preconceived result. Surviving a motion to dismiss is not a high hurdle and to categorize that as a "win" is just plain laughable.

    A better study would be a breakdown of circuit court cases as that is where Second Amendment jurisprudence is currently being made. Other then the Supreme Court saying, in the MA stun gun case, that "seriously the 2nd Amendment applies just like other enumerated rights" they have largely been silent over the years. Until that happens mostly 3 judge panels will be dictating constitutional policy in this area.

    But I suspect this year we will see many 2nd amendment cert grants if even some per curium reversals coming up.

  • Lee Moore||

    The problem with social science "studies" such as this one is they have a conclusion then come up with a methodology that will find the intended preconceived result.

    No doubt there's a good deal of that. But even among reasonably honest, albeit politically conventional, social scientists the more ubiquitous problem is that studies are not replicable because the correlations identified are really just random noise :

    1. a study shows a "statistically significant" correlation between, say, supporting Trump and torturing kittens
    2. nine other studies show no correlation between supporting Trump and - drawing swastikas on public buildings, defacing library books, holding up liquor stores, urinating in the street, having reading difficulties, inability to dance, molesting children, drunk driving, crossdressing

    The first study is reported, the other nine are not. But in the nature of things - statistiical things - if you do ten studies of things that aren't actually correlated, at least one will show a correlation simply because that's how sampling works.

    The related, but more disreputable trick, is that you do your experiment and then you construct your test - ie the statement of what it is that you are testing - after you have seen the results. ie you survey Trump suporters on all ten of the items noted above, find you have a correlation on kittens, and hey presto you have a publishable result. It turns out your study was about Trump and kittens.

  • Brett Bellmore||

    Right principle, wrong number. Twenty, not ten.

    95% is a two sigma rule. In physics they use five sigma to avoid the problem of false correlation. There's a movement to take social science up to at least three sigma, but it isn't getting much traction.

  • A bit different||

    Under the Second Amendment, does (should?) this scenario play out with no criminal liability? You and I bump into each other on the street, get into an argument over that, you say, "I'll kill you" (not really meaning it, like the guy in Twelve Angry Men), but I'm afraid so I pull out my legally carried gun and kill you.

  • WJack||

    You probably ought not to trust yourself to carry a gun if you cannot perceive the difference between real and unreal danger

  • Toranth||

    Well, you'd be arrested and sent to trial for murder. Since the other person hadn't done anything to present a lethal threat to you, you'd probably be convicted and spend a long time behind bars.

    This isn't new; the courts have been dealing with violence and self-defense between armed parties for, literally, centuries.

  • A bit different||

    To me the threat seemed real. Isn't that enough? Do I need to wait for you to pull your gun? It would be too late then, no? True, this has been an issue for a long time, but State laws are making it easier for killers. Stand Your Ground, etc.

  • Absaroka||

    "To me the threat seemed real. Isn't that enough?"

    Not by half. States vary some, but in general the question isn't whether *you* fear for your life; it's that a reasonable person would have feared for theirs (and the defensive force used was reasonable).

    If your doorbell rings, and you very sincerely think it's a squad of Ninja assassins and Biden the door, but it was actually Jehovah's Witnesses, your sincere belief doesn't help you - reasonable people don't shoot through their door just because the bell rings.

  • Gunstar1||

    No, it isn't enough.

    Yes, you do need to wait. There are multiple tiers of "force"; threats, non-lethal, and lethal. Responding with lethal force to just a threat of force will land you in jail.

    Depends on the situation, if you have your weapon in your purse/briefcase/backpack. Yes, it would be too late. That isn't an excuse to shoot sooner, you are simply carrying it wrong.

    Stand Your Ground has nothing to do with it. All that means is you had no duty to safely retreat. So in your scenario, if the other guy pulls a knife and you shoot him. Stand your ground means you are probably ok for that use. Non-stand your ground means you would have to try and show that by the time you were aware of the threat of lethal force, you had no safe way to retreat (he could have stabbed me in the back).

    If you really want your mind blown about SYG laws. Look at the Zimmerman case. Some people point out that SYG defense wasn't used. The point isn't made that even in a non-stand your ground state it was a valid use of force. When you are on your back and someone is on top of you punching your face, there is no method of retreat at all, much less safely.

  • ||

    I'll reiterate. Nearly every case from the circuit courts, but especially Kachalsky, Highland Park, Woolard, Peruta (en banc), San Francisco, and Drake, have been in bad faith. They don't require the government prove anything, and 100% defer to the legislature. That isn't even intermediate scrutiny, much less strict, which is what should be used for an enumerated right. If the right to kill fetuses and have gay anal sex get strict scrutiny so should the 2nd Amendment.

  • Jimmy the Dane||

    The proof in those cases boils down to "guns are inherently dangerous so the government does not need to prove anything further". It does not need to prove gun control schemes actually produce safer communities, lower gun violence, or any other end. Just "guns are dangerous" in enough for most circuit courts to rubber stamp any gun control law.

    That definitely isn't anywhere close to intermediate scrutiny and is actually a little less then rational basis. Basically it boils down to in the circuit courts all the government has to say is "Ralphie you might shoot your eye out (if it were not for the fact the legislature passed this law)" and at least two judges will go along with it.

  • ||

    Yes, exactly. The founders protected arms in spite of their danger. The way Klinton and Obongo judges have ruled would render the 2nd amendment empty words.

  • AD-RtR/OS!||

    Expecting consistency in the Federal Judiciary is as hopeless as waiting for Godot.

  • Jimmy the Dane||

    This is what happens when you let OBAMA JUDGES sit on the bench. Good thing we have President Trump and the Senate for another two years to get some REAL judges who understand the RULE OF LAW on the bench.

  • Sarcastr0||

    Trenchant analysis.

    This contentless judicial tribalism is where the right spends a lot of time these days. Has been for 30 years. And it is where the left is beginning to get to.

    We're making a pretty uncomfortable bed, and I don't relish one day having to sleep in it.

  • WJack||

    Got it , as usual, exactly backwards.

  • Sarcastr0||

    Did you read Jimmy the Dane's post? Did you find more content in it than 'My side good, other side bad!?'

  • Absaroka||

    "We're making a pretty uncomfortable bed, and I don't relish one day having to sleep in it."

    We are in fervid agreement there.

  • Sarcastr0||

    Wah-wah.

    Took me a while.

  • Mike45||

    When the courts rule for state or local regulation of the 2nd, they are also ignoring the 10th amendment.

    The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn't give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment.

    The tenth amendment clarifies that rights of the people are not to be restricted by the federal government or the states. If the 10th was respected individual rights would have been "incorporated" from the time of the signing of the Bill of Rights.

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people."

  • End Child Unemployment||

    Well yeah, but commerce clause.

  • apedad||

    "When the exercise of a constitutional right is prohibited for tens of millions of Americans, that does indicate an underenforcement problem in at least some jurisdictions."

    What the heck does "underenforcement" mean?

    Were the decisions legally or constitutionally wrong?

    Or is this just another Kopelism?

  • Lee Moore||

    is this just another Kopelism?

    No. It's a Ruben & Blocher-ism, to whose article Kopel is replying.

  • ||

    Liberals are corrupt, lying, thieves. They see the Constitution as an impediment to their sick desires for power. The only good thing is that conservatives have more bullets than these disgusting fairies have ballots.

  • apedad||

    Luckily for us, ballets beat bullets (at least here in the US).

  • captcrisis||

    The Militia Clause, for one thing, is certainly being underenforced.

  • WJack||

    "Do Some Courts Underenforce the Second Amendment?"

    Probably only "Social Science" (a misnomer) majors, and confused products of progressive law schools would not know the obvious answer.

  • MaverickNH||

    If ten years isn't a long time, is twenty?

  • dwb68||

    The fundamental problem is that the 2nd amendment is supposed to guarantee that citizens are as well armed as their government. We have a civilian form of govt which means everyone is supposed to be equal.

    In reality, government agencies from HHS to FDA not only have fully automatic firearms but have their own tactical units. Just in case they need to raid an organoc dairy farm not paying their Obamacare taxes, I guess.

    A correct reading of the original scope of the 2nd amendmemt would cause justices to confront some uncomfortable truths and strike NFA restrictions. But, Justices are all elitists from elitist institutions so they fully subscribe to elitist knowbetterism. Its unlikely they will allow the plebes to own the same weapons that the Secret Service uses to guard the very lives of the Justices.

  • dwb68||

    The only question I would submit is why 9 Justices think their lives are more important than mine. Everyone is equal before the law. or not, when it comes to protection i guess. If they are not going to enforce the 2nd amendment, at least epically troll them.

  • waypasthadenough||

    Those who claim to support our most basic right under-enforce it. That's the problem.

    That might require actual thought and personal responsibility.

    FK - The Anti-American Dream
    http://www.freekentucky.com/th.....can-dream/
    What to do with the camel

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